Kane v. People

3 Wend. 363 | N.Y. Sup. Ct. | 1829

By the Court,

Savage, Ch. J.

Several grounds have been urged as error and relied on for the reversal of this judgment, neither of which can be sustained. It is said, 1. That the act under which the conviction was had does not make the officers personally liable. The language of the act is, that every neglect to keep and preserve the road in good repair shall be deemed a misdemeanor in the president and individual directors for the time being of the company. If the individual officers are deemed guilty of an offence, they must be individually punishable, which of course must be personal. No statute was necessary to make the road itself indictable as a nuisance ; upon such an indictment, however, the officers would not be liable to punishment individually; where the legislature make them thus liable, they can mean nothing else, but that they are to be personally liable.

2. It is objected that the defendants are indicted under two acts as the officers of two distinct companies. This is so, but it is no ground of error ; the counts are good in form, and the the defendants are liable only as officers of “ The Mohawk Turnpike Company.” There is no such company nominally as the one described in the first count; but if there is one good count, my impression is, judgment cannot be arrested, nor would the indictment be quashed on demurrer. It is a mistake, I think, to say that the defendants were indicted as directors. They were indicted as individuals, and the facts charged being found to be true, they are to be punished as individuals, the law adjudging them guilty of a misdemeanor.

3. It is said that the act of 1805 does not continue the individual liability of the officers. The liability imposed by the act of 1800 is not repealed, and the only effect of the act of 1805 is to create “ the bridge company ” out of the stock of the old company ; the provisions of the first act remain, and as the liability is individual, I can see no reason why the prosecution may not be against each separately, If it is joint, one may be acquitted and another convicted. Although the offence may be joint, it is several also, and therefore it is no objection that others, joined in the same indictment, have been acquitted. For aught we know the other defendants may have shewn that they endeavored in the board of directors to have the road repaired, but were overruled by the defendant, who is convicted, with the aid of other members of the board.

4. It is said the judgment should have been that the road he repaired. It must be remembered that the offence is made by statute a mis-demeanor, and according to my reading of it,, the offence is personal. It must, therefore, be punished like other misdemeanors by fine and imprisonment, both or either at the discretion of the court.

Judgment affirmed.